J-S35015-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: J.M.S.-R., A 

MINOR

IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: N.R.

No. 229 MDA 2018

Appeal from the Decree Entered December 28, 2017

In the Court of Common Pleas of Berks County

Orphans' Court at No(s): 84857

BEFORE: BENDER, P.J.E., PANELLA, J., and MURRAY, J.

MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 03, 2018

N.R. (“Mother”) appeals from the December 28, 2017 decree that 

granted the petition filed by the Berks County Children and Youth Services 

(“BCCYS”) to involuntarily terminate her parental rights to her minor child, 

J.M.S.-R. (“Child”) (born in November of 2015), pursuant to sections 

2511(a)(1), (2), (5), (8) and (b) of the Adoption Act, 23 Pa.C.S. §§ 2101-

2938. After careful review of the record and applicable law, we affirm.1, 2

The orphans’ court summarized the relevant facts and procedural 

history of this case in its Pa.R.A.P. 1925(a) opinion: 

Mother came to the attention of BCCYS as early as 2011 as 

a result of reports alleging lack of appropriate parenting skills, lack 

of stable and appropriate housing, domestic violence, lack of basic 

____________________________________________

1 The parental rights of Child’s father, J.S. (“Father”), were terminated by 

separate decree on the same date. Father is not a party to this appeal. 

2 A guardian ad litem (“GAL”), Melissa Krishock, Esq., and a child advocate, 

Jennifer L. Grimes, Esq., were appointed to represent the best interests and 

the legal interests of Child. Both attorneys participated in the termination 

hearing. The GAL joined in the brief filed by BCCYS. 
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needs for her children, unstable mental health, alcohol and other 

drug abuse, truancy, lack of supervision, and a history of 

incarcerations due to her involvement with the criminal justice 

system. At the time, Mother had three minor children who were 

all adjudicated dependent by the [c]ourt in March [of] 2014. 

As a result of Mother’s inability or unwillingness to comply 

with [c]ourt-ordered services provided by BCCYS and to make 

changes necessary to provide for a safe, healthy, and permanent 

living environment for her children, BCCYS petitioned the [c]ourt 

to involuntarily terminate Mother’s parental rights. The matter 

proceeded to a hearing in December [of] 2015, and the [c]ourt 

terminated Mother’s parental rights with regard to those three 

children (all three children were adopted). Leading up to that 

termination hearing, Mother gave birth to [Child], the [c]hild at 

issue in this appeal. 

On November 16, 2016, a little more than one year after [] 

Child’s birth, BCCYS established Father’s paternity of [] Child

through genetic testing. Although Father did not sign a consent 

to adoption, he testified that he: (1) was happy where [] Child 

was placed (with the foster parents); (b) had nothing against the 

foster parents; and (c) believe[s] [] Child will grow up with a 

better life where she currently resides. Father further testified 

that he would not sign away rights to his daughter because he 

would not want her to find out at a later date that he did so 

willingly. 

Because the [c]ourt previously terminated Mother’s parental 

rights involuntarily with regard to three other children, the [c]ourt 

found that “aggravated circumstances” existed pursuant to 42 

Pa.C.S.[] § 6302, permitting BCCYS to file a petition of emergency 

custody of [] Child before Mother had been discharged from the 

hospital. The [c]ourt subsequently conducted a dependency 

hearing[,] at which time the [c]ourt ordered, among other things, 

that Mother cooperate with parenting education, a mental health 

evaluation and recommended treatment, random urinalysis, 

domestic violence evaluation and recommended treatment, and 

other casework services. 

According to testimony from Jennifer Kemmerer, a 

caseworker with BCCYS assigned to Child’s case, on November 28, 

2015, approximately two weeks after giving birth to [] Child, 

Mother’s parole was revoked in connection with certain criminal 

proceedings. As a result, Mother was incarcerated at Berks 
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County Prison. Between that time and December 21, 2015, 

Mother had only taken advantage of one out of three opportunities 

to have a visit with [Child]. Although Mother could have had 

weekly visits while incarcerated, she did not request any during 

that time (from December [of] 2015 through April [of] 2016). Ms. 

Kemmerer also testified that, while Mother was incarcerated, she 

initially participated in casework services, but that Mother failed 

to reach out to BCCYS caseworkers following her release from 

incarceration in April [of] 2016. 

A chance meeting between a BCCYS caseworker and Mother 

in the Berks County Services Center in May [of] 2016 resulted in 

Mother[’s] being scheduled for a meeting to develop a plan for 

services[,] as well as Mother[’s] being informed [that] bi-weekly 

visits with [] Child could take place with the condition that Mother 

provide contact information (a phone number) to BCCYS, and that 

she call and confirm visits with the agency. Mother failed to 

follow-up with BCCYS, having never provided a phone number or 

contacting the agency to confirm visits with her daughter. 

In August [of] 2016, Mother was re[-]incarcerated in Berks 

County Prison on a parole violation, where she remained until 

March [of] 2017. When released in March [of] 2017, Mother failed 

to provide BCCYS with an address or whereabouts for 

approximately one month. During that time, however, Mother did 

contact BCCYS about resuming visits with [] Child. Ms. Kemmerer 

testified that, although Mother missed a monthly visit in April, she 

did attend all subsequent monthly visits from May [of] 2017 

through December [of] 2017. Despite the renewed interest in 

visitations, Ms. Kemmerer testified that, since the birth of Child, 

Mother had spent less than 15 total hours caring for [] Child. 

Orphans’ Court Opinion (“OCO”), 3/5/18, at 4-7 (citations to record omitted). 

On May 25, 2016, BCCYS filed a petition to involuntarily terminate 

Mother’s parental rights. On December 28, 2017, a hearing was held on that 

petition. Mother appeared in person at the hearing and was represented by 

court-appointed counsel. After hearing testimony from Mother, Father, and 

Ms. Kemmerer, the court issued a decree terminating Mother’s parental rights 
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to Child pursuant to section 2511(a)(1), (2), (5), (8) and (b) of the Adoption 

Act. 

Mother timely filed a notice of appeal on January 25, 2018, along with 

a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 

1925(a)(2)(i) and (b). Mother now presents the following sole issue for our 

review: “Whether the [orphans’] court erred and/or abused its discretion by 

entering an order on December 28, 2017[,] involuntary [sic] terminating the 

parental rights of Mother[,] where Mother was engaged and progressing in her 

court-ordered services and reunification goals[?]” Mother’s Brief at 6. 

We review an appeal from the termination of parental rights under the 

following standard: 

[A]ppellate courts must apply an abuse of discretion 

standard when considering a trial court’s determination of a 

petition for termination of parental rights. As in dependency 

cases, our standard of review requires an appellate court to accept 

the findings of fact and credibility determinations of the trial court 

if they are supported by the record. In re: R.J.T., ... 9 A.3d 1179, 

1190 (Pa. 2010). If the factual findings are supported, appellate 

courts review to determine if the trial court made an error of law 

or abused its discretion. Id.; R.I.S., 36 A.3d [567,] 572 [(Pa. 

2011) (plurality opinion)]. As has been often stated, an abuse of 

discretion does not result merely because the reviewing court 

might have reached a different conclusion. Id.; see also Samuel 

Bassett v. Kia Motors America, Inc., ... 34 A.3d 1, 51 (Pa. 

2011); Christianson v. Ely, ... 838 A.2d 630, 634 (Pa. 2003). 

Instead, a decision may be reversed for an abuse of discretion 

only upon demonstration of manifest unreasonableness, partiality, 

prejudice, bias, or ill-will. Id. 

As we discussed in R.J.T., there are clear reasons for 

applying an abuse of discretion standard of review in these cases. 

We observed that, unlike trial courts, appellate courts are not 

equipped to make the fact-specific determinations on a cold 
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record, where the trial judges are observing the parties during the 

relevant hearing and often presiding over numerous other 

hearings regarding the child and parents. R.J.T., 9 A.3d at 1190. 

Therefore, even where the facts could support an opposite result, 

as is often the case in dependency and termination cases, an 

appellate court must resist the urge to second guess the trial court 

and impose its own credibility determinations and judgment; 

instead we must defer to the trial judges so long as the factual 

findings are supported by the record and the court’s legal 

conclusions are not the result of an error of law or an abuse of 

discretion. In re Adoption of Atencio, ... 650 A.2d 1064, 1066 

(Pa. 1994). 

In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012). 

In termination cases, the burden is upon the petitioner to prove by clear 

and convincing evidence that the asserted grounds for seeking the termination 

of parental rights are valid. In re S.H., 879 A.2d 802, 806 (Pa. Super. 2005). 

We have previously stated:

The standard of clear and convincing evidence is defined as 

testimony that is so clear, direct, weighty and convincing as to 

enable the trier of fact to come to a clear conviction, without 

hesitance, of the truth of the precise facts in issue. 

In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003) (internal quotation 

marks omitted). 

Termination of parental rights is governed by section 2511 of the 

Adoption Act, which requires a bifurcated analysis. 

Our case law has made clear that under Section 2511, the court 

must engage in a bifurcated process prior to terminating parental 

rights. Initially, the focus is on the conduct of the parent. The 

party seeking termination must prove by clear and convincing 

evidence that the parent’s conduct satisfies the statutory grounds 

for termination delineated in Section 2511(a). Only if the court 

determines that the parent’s conduct warrants termination of his 

or her parental rights does the court engage in the second part of 

the analysis pursuant to Section 2511(b): determination of the 
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needs and welfare of the child under the standard of best interest 

of the child. One major aspect of the needs and welfare analysis 

concerns the nature and status of the emotional bond between 

parent and child, with close attention paid to the effect on the child 

of permanently severing any such bond. 

In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citing 23 Pa.C.S. § 2511; 

other citations omitted). 

This Court must agree with only one subsection of 2511(a), in addition 

to section 2511(b), in order to affirm the termination of parental rights. See 

In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc). Herein, we 

review the decrees pursuant to sections 2511(a)(2) and (b), which provide as 

follows: 

(a) General Rule.—The rights of a parent in regard to a child 

may be terminated after a petition filed on any of the following 

grounds: 

...

(2) The repeated and continued incapacity, abuse, neglect 

or refusal of the parent has caused the child to be without 

essential parental care, control or subsistence necessary 

for his physical or mental well-being and the conditions 

and causes of the incapacity, abuse, neglect or refusal 

cannot or will not be remedied by the parent. 

...

(b) Other considerations.—The court in terminating the rights 

of a parent shall give primary consideration to the developmental, 

physical and emotional needs and welfare of the child. The rights 

of a parent shall not be terminated solely on the basis of 

environmental factors such as inadequate housing, furnishings, 

income, clothing and medical care if found to be beyond the 

control of the parent. With respect to any petition filed pursuant 

to subsection (a)(1), (6) or (8), the court shall not consider any 

efforts by the parent to remedy the conditions described therein 

which are first initiated subsequent to the giving of notice of the 

filing of the petition. 
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23 Pa.C.S. § 2511(a)(2) and (b). 

We first address whether the trial court abused its discretion by 

terminating Mother’s parental rights pursuant to section 2511(a)(2). 

In order to terminate parental rights pursuant to 23 Pa.C.S.[] § 

2511(a)(2), the following three elements must be met: (1) 

repeated and continued incapacity, abuse, neglect or refusal; (2) 

such incapacity, abuse, neglect or refusal has caused the child to 

be without essential parental care, control or subsistence 

necessary for his physical or mental well-being; and (3) the 

causes of the incapacity, abuse, neglect or refusal cannot or will 

not be remedied. 

In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa. Super. 2003) (citation 

omitted). “The grounds for termination due to parental incapacity that cannot 

be remedied are not limited to affirmative misconduct. To the contrary, those 

grounds may include acts of refusal as well as incapacity to perform parental 

duties.” In re A.L.D., 797 A.2d 326, 337 (Pa. Super. 2002) (citations 

omitted). 

There is no simple or easy definition of parental duties. Parental 

duty is best understood in relation to the needs of a child. A child 

needs love, protection, guidance, and support. These needs, 

physical and emotional, cannot be met by a merely passive 

interest in the development of the child. Thus, this [C]ourt has 

held that the parental obligation is a positive duty which requires 

affirmative performance. 

In re K.Z.S., 946 A.2d 753, 759 (Pa. Super. 2008). 

Moreover, this Court has previously stated:

A parent must utilize all available resources to preserve the 

parental relationship, and must exercise reasonable firmness in 

resisting obstacles placed in the path of maintaining the parentchild relationship. Parental rights are not preserved by waiting for 

a more suitable or convenient time to perform one’s parental 
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responsibilities while others provide the child with his or her 

physical and emotional needs.

Id. Where a parent does not “exercise reasonable firmness in declining to 

yield to obstacles, his [parental] rights may be forfeited.” In re A.S., 11 A.3d 

473, 481 (Pa. Super. 2010). With respect to the application of section 

2511(a)(2) to an incarcerated parent, the Pennsylvania Supreme Court held: 

[I]ncarceration, while not a litmus test for termination, can be 

determinative of the question of whether a parent is incapable of 

providing “essential parental care, control or subsistence” and the 

length of the remaining confinement can be considered as highly 

relevant to whether “the conditions and causes of the incapacity, 

abuse, neglect or refusal cannot or will not be remedied by the 

parent,” sufficient to provide grounds for termination pursuant to 

23 Pa.C.S. § 2511(a)(2).

S.P., 47 A.3d at 830. 

Instantly, Mother argues that the court erred in terminating her parental 

rights to Child, because she “made significant progress with her court-ordered 

services since her release from incarceration[,]” and she “began to 

demonstrate that she has the capacity to be a suitable parent[.]” Mother’s 

Brief at 10. Additionally, Mother claims that while incarcerated, she made a 

good faith effort to be involved in Child’s life. Id. at 14. Since her release, 

Mother states that she has maintained employment and a stable residence. 

Id. at 16. The record clearly belies Mother’s claims. 

First, the orphans’ court found that between the time Mother was 

released from prison in March of 2017 and the termination hearing in 
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December of 2017, Mother failed to obtain suitable, stable housing,

3 nor did 

she maintain steady employment.

4

 OCO at 7. With regard to visitation, the 

court noted that, “given numerous opportunities to spend time with and form 

a bond with [] Child, Mother has ... failed to follow through with even the 

simplest task of consistently staying in contact with BCCYS to arrange and 

confirm visits with [] Child.” Id. at 8. Even while incarcerated, visitation was 

available to Mother; however, she failed to take advantage of the opportunity 

to spend time with Child. Id. at 8-9. 

“Beyond the issues with visitations..., Mother has also shown a 

propensity for minimally beginning improvement through services, only to fail 

by not following through.” Id. at 9. The record reflects that Mother began, 

but failed to complete, domestic violence counseling, drug and alcohol 

treatment, and individual mental health counseling. Id. 

According to Ms. Kemmerer, once Mother was out of prison 

the second time, and in contact with BCCYS, she was evaluated 

by Berks TASC (Treatment Access and Services Center), after 

which she was referred to Pennsylvania Counseling for intensive 

outpatient services that included both group and individual 

therapy. Mother relapsed and tested positive for using cocaine 

[on] September 22, 2017.... Subsequently, Mother was to begin 

a Spanish-speaking outpatient program on October 11, 2017, but 

she failed to attend. On November 21, 2017, more than one 

____________________________________________

3 “Ms. Kemmerer testified that BCCYS was aware of at least four different 

addresses for Mother, and that there was approximately one month where 

BCCYS was unaware of Mother’s location.” OCO at 7.

4 The orphans’ court noted that Mother has changed jobs three times since 

she was released from prison and stated that this established “a track record 

of instability.” N.T. Termination, 12/28/17, at 56 (emphasis added). 
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month later, Mother reached out to Ms. Kemmerer to advise that 

Mother was going to switch to a different counseling service (Berks 

Counseling Center). BCCYS received notice from Pennsylvania 

Counseling that Mother had been unsuccessfully discharged from 

the program; Mother stopped providing urine samples after 

November 20, 2017.

...

Mother had been required to participate in mental health 

and domestic violence evaluations, along with participating in any 

counseling recommended as a result of those evaluations. 

Although Mother did initially participate in some individual 

therapy, Ms. Kemmerer testified that Mother’s frequency of being 

in and out of prison precluded her from being able to successfully 

complete such services. Mother apparently did begin some 

individual mental health therapy after her second release from 

prison. Ms. Kemmerer testified, however, that she was unable to 

confirm what services Mother participated in because Mother did 

not provide the name of the therapist to BCCYS. 

With regard to domestic violence concerns, Mother did 

participate in the required evaluation but failed to keep BCCYS 

informed of her participation with recommended counseling 

associated with the domestic violence evaluation. Ms. Kemmerer 

... later learned Mother had been complying with domestic violence 

therapy only to stop attending on October 5, 2017. Mother also 

failed to return phone calls to re-engage in those services. 

Id. at 7-8. Mother has continued to demonstrate an incapacity to parent and 

the inability to remedy the causes of such incapacity. As we have previously 

stated, “[a] parent’s vow to cooperate, after a long period of 

uncooperativeness regarding the necessity or availability of services, may 

properly be rejected as untimely or disingenuous.” In re Z.P., 994 A.2d 1108, 

1118 (Pa. Super. 2010) (internal citation and quotation marks omitted). 

Moreover, Mother’s pattern of criminal activity and multiple periods of 

incarceration, as well as her failure to comply with the goals set for her by 

BCCYS, satisfy the requisites of incapacity, abuse, neglect or refusal of the 
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parent, pursuant to subsection 2511(a)(2). See In re Adoption of W.J.R., 

952 A.2d 680, 687 (Pa. Super. 2008); see also In re Z.P., 994 A.2d 1108, 

1125 (Pa. Super 2010) (finding father’s repeated drug use and criminal 

activity show a pattern of incapacity to parent). “This Court cannot and will 

not subordinate indefinitely a child’s need for permanence and stability to a 

parent’s claims of progress and hope for the future.” In re I.J., 972 A.2d 5, 

12 (Pa. Super. 2009) (internal citation omitted). After careful review, we 

deem the court’s decision to terminate Mother’s parental rights, pursuant to 

section 2511(a)(2), to be well-supported by the record. 

After we determine that the requirements of section 2511(a) are 

satisfied, we proceed to review whether the requirements of subsection (b) 

are met. See In re Adoption of C.L.G., 956 A.2d 999, 1009 (Pa. Super. 

2008) (en banc). This Court has stated that the focus in terminating parental 

rights under section 2511(a) is on the parent, but the focus is on the child 

pursuant to section 2511(b). Id. at 1008. 

In reviewing the evidence in support of termination under section 

2511(b), our Supreme Court stated as follows: 

[I]f the grounds for termination under subsection (a) are met, a 

court “shall give primary consideration to the developmental, 

physical and emotional needs and welfare of the child.” 23 Pa.C.S. 

§ 2511(b). The emotional needs and welfare of the child have 

been properly interpreted to include “intangibles such as love, 

comfort, security, and stability.” In re K.M., 53 A.3d 781, 791 

(Pa. Super. 2012). In In re E.M., [620 A.2d 481, 485 (Pa. 1992)], 

this Court held that the determination of the child’s “needs and 

welfare” requires consideration of the emotional bonds between 

the parent and child. The “utmost attention” should be paid to 
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discerning the effect on the child of permanently severing the 

parental bond. In re K.M., 53 A.3d at 791. 

In re T.S.M., 71 A.3d 251, 267 (Pa. 2013). 

Here, the trial court concluded that it would be in [Child’s] best interest 

for Mother’s parental rights to be terminated. The court emphasized that, 

since Child’s birth, Mother has spent less than one day caring for Child and 

that the foster parents have been meeting Child’s developmental, physical, 

and emotional needs. OCO at 9. Mother does not raise any specific objection 

to the orphans’ court finding that termination of her parental rights was in the 

best interest of Child, pursuant to 23 Pa.C.S. § 2511(b); however, Mother 

does assert that she was making progress bonding with Child. Mother’s Brief 

at 17. 

Again, we conclude that the record supports the orphans’ court’s 

decision to terminate Mother’s parental rights. When asked at the hearing 

whether she had any concerns during visits between Mother and Child, Ms. 

Kemmerer replied: 

[Child] takes a while to warm up to her still. She has started to 

get to know her a little better, [] she’s not clinging to the resource 

mother like she had been. She will go and play with her; but she 

does not see her in a parental role, more like a playmate.

N.T. Termination at 18. Moreover, Ms. Kemmerer testified that Child is “very 

bonded and attached to [her foster parents]” and that “she looks to them as 

her parents.” Id. at 21. Accordingly, the agency recommended that Mother’s 

parental rights be terminated so that Child can be adopted. Id. 
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In support of its decision to terminate Mother’s parental rights, the 

orphans’ court summarized: 

Mother has spent less than one full[ ]day caring for [] Child since 

birth. Any bond between Child and mother is minimal, at best. In 

fact, based upon Ms. Kemmerer’s testimony, [] Child is bonded 

with the foster parents. Terminating Mother’s parental rights 

would not detrimentally affect [Child]. In fact, the foster parents 

are resources who can continue to meet Child’s developmental, 

physical, and emotional needs. It is clearly within [] Child’s best 

interest[] to terminate Mother’s parental rights. In fact, [] Child 

deserves stability, permanency, and an opportunity to grow up in 

an environment free of the disruption and turmoil surrounding the 

dependency process. 

Here, Mother’s “right to the custody and rearing of [C]hild 

is converted, upon the failure to fulfill [] her parental duties, to [] 

[C]hild’s right to have proper parenting and fulfillment of his or 

her potential in a permanent, healthy[,] safe environment.” In 

re: B.L.W., 843 A.2d at 388. As the Superior Court has observed, 

“it is time to give [Child] a chance to have [her] fundamental 

needs met without the constant insecurity that comes with 

knowing that someday, perhaps in the unreasonably distant 

future, [she] might again be wrenched away from [her] 

committed and capable caregivers.” Id. (quoting In re N.C., 763 

A.2d 913, 919 (Pa. Super. [] 2000)).

OCO at 9. 

As there is competent evidence in the record that supports the orphans’ 

court’s credibility and weight assessments regarding Child’s needs and 

welfare, and the absence of any bond with Mother, we conclude that the court 

did not abuse its discretion as to section 2511(b). See S.P., 47 A.3d at 826-

27. Accordingly, we affirm the decree terminating Mother’s parental rights to 

Child. 

Decree affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 08/03/2018